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Haines v R

Haines v R

Case [2021] NSWCCA 149 7 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Haines v R [2021] NSWCCA 149
Hearing dates: 30 April 2021
Decision date: 07 July 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [65];
N Adams J at [67]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – 10 offences including accessory after the fact to break enter and steal, robbery armed with an offensive weapon, steal from the person and reckless wounding – error on part of sentencing judge in referring to maximum penalty for one of the offences – need to re-sentence – whether lesser sentence warranted in law – whether sentencing judge failed to properly consider totality and accumulation – no lesser penalty warranted in law – appeal against sentence dismissed.

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Aboud v Regina [2021] NSWCCA 77
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CM v R [2013] NSWCCA 341
GP v Regina [2017] NSWCCA 200
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lonsdale v R [2020] NSWCCA 267
Newman (a pseudonym) v R [2019] NSWCCA 157
Qoro v R [2020] NSWCCA 276
R v Fernando (1992) 76 A Crim R 58
R v Jeremiah [2016] NSWCCA 241
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

Category: Principal judgment
Parties: Isaac Haines – Applicant
Regina – Respondent
Representation:
Counsel:
L Brasch – Applicant
C Young – Respondent
Solicitors:
Toomey Defence Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2016/1511061; 2016/216765; 2017/170765
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 November 2019

Before:

Girdham SC DCJ

File Number(s):

2016/151061; 2016/216765; 2017/170765

JUDGMENT

HOEBEN CJ at CL:

Offending and sentence

The applicant seeks leave pursuant to s 5(1 )(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by her Honour Judge Girdham SC (the sentencing judge) on 22 November 2019 in the District Court at Sydney.

The applicant was sentenced to an aggregate sentence of 6 years and 4 months imprisonment, commencing 1 June 2019 and expiring 30 September 2025. The sentencing judge imposed an aggregate non-parole period of 3 years and 10 months with the applicant eligible for parole on 31 March 2023.
The following table summarises the offences, the respective maximum penalties and indicative sentences imposed:

Reference	Offence	Maximum Penalty (SNPP)	Indicative sentence
The Local Court offences
H63882588 Sequence 7	Damage property s 195 (1 )(a) Crimes Act 1900	5 years (No SNPP)	3 months
H63882588 Sequence 8	Possess prohibited drug s 10(1) Drug Misuse and Trafficking Act 1985	2 years (No SNPP)	3 months
The break and enter offences
201610720_2.1 Count 1	Accessory after fact to break, enter and steal s 112(1)(a)/s 347 Crimes Act 1900	5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haines v R

Details

AGLC: Haines v R [2021] NSWCCA 149
Case: [2021] NSWCCA 149
Decision Date: 07 July 2021

CaseChat Overview and Summary

Haines was convicted of ten offences, including acting as an accessory after the fact to a break, enter, and steal, robbery armed with an offensive weapon, stealing from the person, and reckless wounding. He appealed against his sentence, arguing that the sentencing judge had erred in referring to the maximum penalty for one of the offences and failed to properly consider the totality and accumulation of the offences. The court had to decide whether the sentencing judge's error necessitated a re-sentencing and whether a lesser sentence was warranted in law. The court also had to determine whether the sentencing judge had failed to properly consider the totality and accumulation of the offences.

The court found that the sentencing judge had erred in referring to the maximum penalty for one of the offences, which necessitated a re-sentencing. However, the court held that no lesser penalty was warranted in law, as the sentencing judge had properly considered the totality and accumulation of the offences. The court held that the sentence imposed was appropriate and reflected the seriousness of the offences. The appeal against sentence was dismissed.

The court emphasised the importance of proper sentencing, particularly in cases involving multiple offences. The court noted that the sentencing judge had considered the totality and accumulation of the offences and had imposed a sentence that reflected the seriousness of the offences. The court held that the appeal against sentence was without merit and dismissed it. No further orders were made.

Orders